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Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina Malcolm Russell-Einhorn IRIS Center, University of Maryland The World Bank, June 8, 2004.

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Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenges

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Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina

Malcolm Russell-Einhorn

IRIS Center, University of Maryland

The World Bank, June 8, 2004

Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenges


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Overview

  • Potential significance of administrative appeals systems (and administrative procedures generally) to promotion of ‘everyday justice’ and governmental integrity

  • The specific purposes served by an effective administrative appeals (internal review) system

  • Use of a questionnaire in Latvia to assess functioning of various ministries’ appeals systems; additions to such a questionnaire through work in Bosnia

  • Public sector management and political economy challenges to implementing administrative appeals reform efforts: picking appropriate targets of opportunity


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A sound administrative procedure system

  • Concerned with constraining bureaucratic discretion

  • Encompasses procedural rules for initial administrative decision-making as well as an opportunity to appeal to administrative body; may also encompass court review (e.g., everything from tax to pension appeals)

  • Through substantive and procedural protections, ‘evens the playing field’ between the state and citizens

  • Is concerned with both efficiency and fairness, which has a potential impact on citizen trust in government and the investment climate


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Recent worldwide attention paid to administrative procedure reform

  • Major new laws on administrative procedure passed in Korea, Japan, and Taiwan in the early 1990s

  • Major new codes adopted in past several years in transition countries, including Latvia, Estonia, Georgia,

  • Coincides with political realignments and greater contestation; and EU accession efforts


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Relative priorities: first-instance decision-making and deregulation vs. administrative appeals vs. court review

  • Complementary parts of an integrated system of administrative justice

  • Deregulation and first-instance decision-making significantly more important

  • Significant public sector management challenges and demand-side usage problems attend administrative appeals systems


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Purposes of an administrative appeals system

  • Provides quick and inexpensive way for public to challenge administrative decisions without going to court

  • Raises public trust in the administration

  • Provides agencies opportunity to use expertise to check lower instance decision-making for correctness and consistency

  • Clear interpretation of law and procedure discourages unnecessary second instance and court appeals by public; and incorrect case processing by first instance decision-makers


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Internal review systems are generally neglected

  • Not accorded as much attention or prestige as court review as source of substantive legal interpretation

  • Second instance decision-makers in ministries or agencies often under-staffed and under–resourced; often lack appropriate expertise

  • Also sometimes lack sufficient organizational independence and/or political support by agency

  • Hard for agencies and government as a whole to share information/good practices on internal review


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Progress of Administrative Procedure Reform in Latvia

  • Historical antecedents of the new Administrative Procedure Law (Inter-war period, Soviet period, 1990s)

  • Among many reasons for a new law, most crucial was improving court procedure and enunciating modern European substantive review principles

  • Drafting of new law began in 1999; law enacted in 2001, effective date February 2004

  • Implementation grant from World Bank in 2003: five components, incl. assessment of admin. appeals


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Latvia’s new administrative procedure law (APL)(2004)

  • A framework law that provides a ‘floor’ for proper administrative decision-making

  • Features decision-making based on democratic principles (equality, proportionality, lawful basis), introduces new court procedural rules

  • Also features decision-making informed by clearer procedural regularity (opportunity to be heard, to present evidence, to be given reasons for a decision)


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Key obligations of civil servants under the new APL

  • Provide citizens relevant information and obtain such information from other agencies if necessary

  • Clarify and assess arguments of citizens seeking an administrative decision

  • Issue decisions that contain arguments of the parties and a reasoned justification for the decision

  • Give citizens a right to be heard on appeal in a ‘higher institution”


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Translating the APL’s promise into reality

As usual, an ‘implementation gap’ may exist:

  • Legal norms need to be harmonized

  • Commentaries need to be written

  • Internal guidelines and forms need to be developed

  • Civil servants need training

  • Public needs information

  • Better recordkeeping and monitoring needed


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Use of a survey to clarify APL implementation issues

  • Designed to gather information about existing internal review procedures and plans for implementing the APL

  • Drafted with input from, and administered to, members of a Prime Minister’s Working Group

  • Two separate questionnaires: one for ministries and one for subordinate institutions

  • Basically limited to supply-side concerns


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Key topics of the surveys

  • Types and volume of administrative decisions

  • Levels and avenues of appeal

  • Volume of appeals and recordkeeping

  • Internal processes for handling appeals

  • Review/monitoring of appeals practices

  • Training of civil servants

  • Public information practices

  • Retrieval of information between agencies

  • Resource needs for implementation of the law


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Survey responses

  • 15 out of 17 ministries responded (88%)

  • 83 out of 95 subordinate institutions (87%)

  • High response rate can be considered comprehensive for national-level government

  • Survey not administered to municipalities, but results are suggestive for them as well


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Types and volume of administrative decisions

  • Many institutions could not supply full list of types of administrative decisions they issued

  • Information on volume of administrative decisions was better, but still understated

  • Most agencies failed to identify procurement, freedom of information, or civil service decisions as decisions

  • Failure to fully identify types and volume of decisions reduces agency ability to comply with law and ensure good management practices


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Levels & avenues of appeal

  • Special legal norms often govern avenues of appeal

  • Ideally should have one internal appeal level, but 38 of 83 institutions reported more than one

  • Appeals often made to head of a regional or structural unit, and then to the head of an institution or to ministry

  • For fairness and efficiency, better to focus on quality of review and limiting number of appeal instances (avoiding “appeal fatigue”)


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Differences of Opinion Re: Avenues of Appeal


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Volume & recordkeeping of appeals

  • Few institutions keep statistics on numbers or outcomes of appeals

  • Many institutions that do keep statistics on appeals have very low figures

  • Of those that keep statistics, several have very high affirmation rates, possibly problematic

  • Dearth of statistics prevents analysis, learning, and improvements in quality of service


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Organization and processes for handling appeals

  • Only 16 out of 83 subordinate institutions have a dedicated unit to handle appeals

  • 8 had standing appellate commissions with collegial decision-making

  • Dedicated appeals units or boards may be required where large numbers of appeals are filed and/or special expertise is needed


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Considerations affecting location & nature of internal appeals units

To ensure quality review, set up appeals units that have:

  • Reviewers with adequate legal and technical expertise and writing skills

  • Reviewers with adequate political support and resources/salaries

  • Functional independence from line agency personnel


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Procedures and guidelines for handling appeals

  • 50 institutions reported having no external or internal guidelines for handling appeals

  • Number is probably higher, since only 9 institutions clearly reported having guidelines

  • Only 4 institutions reported guidelines governing substantive review of appeals

  • Only 4 institutions reported using checklists of necessary elements for rendering decisions


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Forms and information for the public on appeals procedures

  • Although many agencies have standardized forms for issuance of administrative acts, most relate only to administrative violations cases

  • Most forms do not provide clear guidance on where appeals will be lodged and processed under the APL

  • 21 agencies have web sites that explain something about appeal rights, while 12 institutions have brochures on the subject.


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Systemic reviews/monitoring of appeals practices

  • 51 out of 83 responding institutions said they conducted no systemic analyses

  • How ‘systemic’ actually are such reviews?

  • Value of such reviews: identifying problems in policy, procedures, practices

  • Helpful to periodically survey staff & appellants

  • Appeals should be analyzed to identify trends and rectify recurrent problems


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Retrieval of information between institutions

  • APL requires institutions to gather all information necessary to a decision, rather than requiring citizens to obtain it. Many don’t.

  • 82 out of 98 institutions said they will use letters of request to fulfill this obligation; 54 said they will use access to online government databases to obtain data;

  • 44 said they will also use phone calls to track down needed data


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Percentage of Civil Servants (7%) by Ministry Who Have Received Some APL Training


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As a result of the surveys

  • Ministries have better understanding of what the implementation issues are

  • Agencies can advocate more persuasively for resources and/or legal and regulatory changes

  • Individual agencies can engage in priority-setting as well as joint initiatives (special norms, training, information exchanges)

  • Government as a whole is sensitized to need for more resources, donor support, and relationship of APL reform to other public sector management & legal reforms


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Mapping Procedures and Writing/Publicizing Guidelines to Eliminate Vagueness & Discretion

  • Avenues of appeal; designation of internal review

  • Procedures for reviewing appeals, including taking of evidence and conduct of hearings; publicizing same

  • Procedures and forms to document appeals

  • Minimum requirements for recordkeeping


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Additional Diagnostic Emphases in Bosnia

  • USAID project focused on administrative procedural reform at local and national level

  • Intensive internal review work with a few ministries (strategic planning, training, case management)

  • More emphasis in surveys on probing pay, education, and independence of 2nd instance decision-makers

  • Additional survey emphasis on probing other reasons for failure to decide appeals on merits


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Challenges for administrative appeals systems reform

  • Political economy considerations (sufficient political contestation; ministry leadership, corruption dynamics)

  • Need for concomitant civil service and other public sector management reforms

  • Need demand-side pressures from civil society, esp. the media and ombudsman, if any

  • Judiciary can also be a source of pressure


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Picking the right targets of opportunity

  • Generally best to take a sectoral, ministry-focused approach based on demonstrated ministry leadership and a motivated community of system users

  • Better if it’s part of, and complements, a broader public sector management initiative

  • Better if public users of system can be surveyed or otherwise provide input on procedures


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